The Employment Appeal Tribunal inadvertently demonstrates why some of the core concepts in the Equality Act 2010 are overly complex and difficult to apply and why the Act needs reform.
The Claimant, Mr Pulman, was a lecturer in plastering at Merthyr Tydfil College. From 2012, he started to have difficulties in his working relations with his line manager and another colleague. From 2013, he developed a depressive illness, and from January 2014 he was off sick never to return to work. There was a history of unsuccessful processes that failed to draw Mr Pulman back to work until he was dismissed on grounds of his ill health absence in February 2015.
Mr Pulman claimed in the Employment Tribunal that he had been discriminated against because of something arising in consequence of his disability under section 15 of the Equality Act 2010, and that the college had been in breach of the duty to make reasonable adjustments under sections 20 and 21.
In most disability discrimination cases based on mental health conditions the starting point of an adjustments claim is that there must exist a “provision, criterion or practice” (usually referred to as a “PCP”) that causes the disabled person substantial disadvantage in comparison to a non-disabled person. This triggers a duty on the employer to make reasonable adjustments to avoid the disadvantage. What is “reasonable” depends on the circumstances of the case and on a variety of factors which might include the size and resources of the employer, the cost or disruption involved in making adjustments or how effective they might be in removing the disadvantage.
Discrimination under what has been described in one case as the “deliciously vague” section 15 is where the employer treats the worker unfavourably not because of the disability itself, but because of something that arises in consequences of the disability, such as absence from work. However, section 15 makes clear that it will not be discrimination if the employer can show that the unfavourable treatment (for example, the dismissal of a disabled person for sickness absence) is a “proportionate means of achieving a legitimate aim”. This concept is not easy to pin down, but the employer must show that it was pursuing a genuine and valid aim (in the sickness dismissal it may, for example, be maintaining reasonable levels of staff attendance) and that the action taken was i) reasonably necessary to achieve that aim and ii) balanced against the discriminatory effect that it has on the worker.
Mr Pulman claimed that the college’s requirement for him to return to the same role as he undertook before his sickness absence and under the same management and structure was the PCP that substantially disadvantaged him and gave rise to the duty to adjust.
The employment tribunal held that this did not amount in law to a PCP as it applied solely to him rather than to a wider class of disabled person. This, according to the EAT, was an error of law based on the EqA’s provisions relating service providers rather than employers.
The Employment Tribunal had also relied on case law which had observed that if there was an outstanding duty to make an adjustment that would have enabled a return to work then any dismissal for sickness absence would inevitably be discrimination for something arising from disability. While this is true, the converse is not, and a justified refusal to make an adjustment and instead to dismiss does not necessarily mean that the dismissal will be a proportionate means of achieve a legitimate aim. With adjustments what is relevant is whether the adjustment is “reasonable” whereas with a section 15 claim the employer can raise a defence with reference to “proportionality”. The two issues overlap, but not inevitably so.
The legal provisions on adjustments are cumbersomely spread over sections 20 and 21 of the EqA and, with respect to employment, are supplemented by the (8 page) Schedule 8 to the Act.
As a concept, the obligation to make reasonable adjustments should be straightforward and has the potential to be something that makes a vast difference to the working lives and health of people with mental health problems in particular. However, this case is yet another illustration of how what could have been a straightforward and powerful driver of social change has become mired in technicality. For a start, the concept of a “PCP” is troublesome, not least as the self-same term has a different definition under section 19 which covers indirect discrimination. Even employment lawyers and tribunal judges often don’t understand it and it is not uncommon in some employment tribunal cases for both parties and the tribunal to be uncertain what the PCP is in a particular case. There is also an uneasy interplay between the duty to adjust and discrimination arising from disability which has the potential to fox tribunals.
Mind is very concerned that the EqA is not delivering for people with mental health problems. There are problems with the definition of disability which don’t protect people with short term and intermittent conditions. Protection should not be dependent on jumping this high hurdle. Other terms within the act such as PCP and the section 15 defence of proportionality are hideously complex and difficult to apply. This is why we at Mind are pressing the government for bold reform of the law in this field and will be campaigning vigorously for change.